Michael Brannon, PSY.D, and Amlong & Amlong, P.A. v. Daniel Palcu and State of Florida , 177 So. 3d 693 ( 2015 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
MICHAEL BRANNON, PSY.D., and AMLONG & AMLONG, P.A.,
Petitioners,
v.
DANIEL PALCU and STATE OF FLORIDA,
Respondents.
No. 4D15-894
[October 28, 2015]
Petition for Writ of Certiorari to the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; Andrew L. Siegel, Judge; L.T. Case No.
06-4892 CF10A.
William R. Amlong, Jennifer Daley and Alison Churly-Davis, Fort
Lauderdale, for petitioners.
Alan R. Soven of Law Offices of Alan R. Soven, Miami, for respondent
Daniel Palcu.
PER CURIAM.
Petitioners, Dr. Michael Brannon and Amlong and Amlong, the law
firm that represents him, seek certiorari review of the trial court’s order
compelling them to produce a specific e-mail string between the two,
which the court set aside from discovery in a sealed envelope.
Respondent, Daniel Palcu, sought the information to demonstrate that
Dr. Brannon perpetuated a fraud or obstructed justice when he testified
in respondent’s criminal case.
Petitioners argued to the trial court that the communication was
protected as an attorney-client communication. § 90.502, Fla. Stat.
(2015). Respondent countered that the crime-fraud exception precluded
petitioners’ use of that privilege. § 90.502(4)(a). The trial court
conducted in camera review of many documents, including the e-mail
string, and ordered that it be produced. Petitioners seek review, arguing
that the trial court was required to conduct an evidentiary hearing before
ordering the production.
We grant the petition, quash the order, and direct the trial court to
conduct an evidentiary hearing. Merco Grp. of the Palm Beaches, Inc. v.
McGregor, 162 So. 3d 49 (Fla. 4th DCA 2014); BNP Paribas v. Wynne,
967 So. 2d 1065, 1068 (Fla. 4th DCA 2007); Am. Tobacco Co. v. State,
697 So. 2d 1249 (Fla. 4th DCA 1997). As we explained in the above cited
cases, the failure to afford petitioners an evidentiary hearing to address
that document and argue why that exception should not apply is a
departure from the essential requirements of law. Merco Grp., 162 So. 2d
at 51, BNP Paribas, 967 So. 2d at 1068; Am. Tobacco, 697 So. 2d at
1256-57.
Petition granted; Order quashed.
MAY, GERBER and KLINGENSMITH, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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